For THE SCHOOL DISTRICT OF PHILADELPHIA, Defendant, Counter Claimant, Counter Defendant: MILES H. SHORE, LEAD ATTORNEY, SCHOOL DISTRICT OF PHILA, OFFICE OF GENERAL COUNSEL, PHILADELPHIA, PA.

OPINION

ANITA B. BRODY, J.

Page 677

Plaintiff Edison Learning, Inc. (" Edison Learning" or " Edison" ) brings suit against Defendant School District of Philadelphia (" School District" ) for breach of contract, claiming that the School District must reimburse Edison Learning for its legal fees and settlement costs from a prior suit. The School District moves for summary judgment, claiming sovereign immunity. The School District has filed a counterclaim seeking its own attorneys' fees from Edison Learning for the same prior suit. Both the School District and Edison Learning move for summary judgment on the counterclaim. For the reasons discussed below, I will grant the School District's motion for summary judgment on Edison's claims, grant Edison Learning's motion for summary judgment on the School District's counterclaim, and deny the School District's motion on its counterclaim.[1]

I. BACKGROUND

A. The Agreement

Edison Learning is a private education services contractor that partners with school districts across the country to administer their public schools. On July 29, 2002, Edison entered into one such agreement with the School District of Philadelphia called the Educational Services Agreement (" ESA" ). The ESA obligated Edison to provide curriculum management, administrative support, and academic support at a number of Philadelphia public schools, including the John B. Stetson Middle School (" Stetson" ).

Three aspects of the ESA are relevant to the instant lawsuit. First, the contract between Edison and the School District carefully delineates the obligations of each entity in the relevant schools. Specifically, with respect to school security, the ESA states that:

[The] School District shall at School District's sole expense provide all appropriate safety and police protection to all students and employees in [relevant schools] during school hours.

The ESA also contains provisions allocating liability between the two parties in the event of a lawsuit. Section 12.2, labeled " Indemnification," entitles the School District to payment for any liability it incurs as a result of Edison Learning's negligent or wrongful conduct. It states in relevant part:

[Edison Learning] hereby agrees to indemnify the School District . . . and agrees to hold [the School District] harmless from any and all liabilities, losses, . . . lawsuits . . . and costs and expenses (including without limitation reasonable expenses of investigation and reasonable attorneys' fees . . .) incurred or suffered by [the School District] arising out of the willful misconduct or negligent act or negligent omission of [Edison Learning] in connection with the performance of its obligations or the delivery of Educational Services contained in this agreement . . . .

Id., Ex. 1, at 47.

Finally, the ESA contains two provisions purporting to maintain the School District's statutory sovereign immunity:

Section 12.5 provides that nothing in the agreement " shall be considered as a

Section 15.2 reiterates that " [t]he School District does not waive any immunity or defense . . . as a result of the execution of this Agreement and performance of the functions or obligations described herein. Nothing herein shall waive or amend any defense . . . under the Pennsylvania Political Subdivision Tort Claims Act."

Id., Ex. 1., at 48, 55 (citations omitted).

B. The Viruet Incident and Litigation

On November 16, 2004, Christopher Viruet, a sixth grade student at Stetson Middle School, asked his math teacher for a hall pass to use the restroom. While Viruet was in the restroom Angel Cuevas, another Stetson student, approached Viruet, threatened him, chased him through the halls to a secluded area of the school, and sexually assaulted him. See id., Ex. 7, at 35-48.

On September 13, 2006, Viruet, through his guardian, filed suit in the Court of Common Pleas of Philadelphia County against Edison Learning and the School District (the " Viruet litigation" ). Viruet asserted a variety of tort claims against both Edison Learning and the School District, claiming that they negligently and intentionally failed to ensure a safe school environment and allowed the assault to take place. See id., Ex. 15 (including ...

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